Court rules that HUD forced employee to retire

By Bureaucratus

Nov 10, 1996

The U.S. Court of Appeals for the Federal Circuit recently gave the Merit Systems Protection Board (MSPB) a lesson in legal procedures. The case involved a 37-year veteran of federal service who objected to his reassignment to the Fort Worth Texas regional offices of the Department of Housing and Urban Development.

Michael J. Barry who had 21 years of service with HUD was reassigned to Fort Worth from New York City in 1994. Barry notified HUD's leadership in writing that he declined the reassignment but was told by one of his supervisors that he would be removed if he did not take the new job. Barry said he would reconsider his decision.

But Barry then heard that he would be eligible to retire and receive an alternate form of annuity consisting of a lump-sum payment and a reduced annuity if he were removed for refusing the reassignment. On the basis of that advice Barry told HUD to proceed with the notice of removal.

HUD however never issued the notice and continued to treat Barry as if he had accepted the reassignment. The agency informed Barry of the effective date of the reassignment and told him when to report to Fort Worth. HUD also told Barry that if he failed to report for the reassignment he would be considered AWOL and would not be paid. In addition he was told he would be subject to disciplinary action including removal for cause.

The day before Barry was to report to Fort Worth HUD told Barry that if he arrived at the New York office for work he would be removed from the building by federal officers. The next day Barry filed a request with HUD for optional retirement. Simultaneously Barry appealed to the MSPB contending that his retirement was involuntary.

Now there's an understatement. But an administrative law judge acting on behalf of MSPB ruled against Barry. The judge said Barry's retirement was voluntary and thus the MSPB had no jurisdiction in the matter.

The ruling rejected Barry's allegation of HUD's coercion and misrepresentation. The judge noted that although HUD continued to act as if Barry had never sent a letter declining the reassignment these actions did not force Barry to retire. The ruling concluded that Barry was merely faced with a "difficult option" and that he chose retirement.

Surprisingly the full MSPB agreed with the administrative law judge and made final his decision. Needless to say Barry took the MSPB decision to the appeals court.

One of the first issues confronted by the court was whether Barry's retirement was voluntary given that the MSPB lacks jurisdiction in cases involving employees who have resigned voluntarily.

In this case the court reached the conclusion that Barry had no choice but to retire. The court noted that Barry submitted a letter to HUD declining his reassignment and asked HUD to proceed with a threatened removal action. HUD acted as if Barry were required to accept the reassignment threatened to place him on AWOL status if he did not and barred him from returning to work at his New York office. Consequently the court concluded that there was coercion.

The MSPB argued that Barry did retire voluntarily because he had the option of contesting the reassignment but instead chose to retire. But HUD's threat to remove Barry from the premises if he showed up at his office clearly indicated that Barry never really was in a position to contest the reassignment. Therefore the court ruled that the MSPB did have jurisdiction in Barry's case and remanded it back to the board for further hearing.

Still I wonder if Barry can expect any type of justice from an MSPB that ignored the obvious in this case. If the board were inclined to treat Barry fairly it would have done so at the outset.

Don't be surprised if you see a future column of mine dealing with another appeal of an MSPB decision by Barry this time for taking an inappropriate position.

Bureaucratus is a retired federal employee who is a regular contributor to Federal Computer Week.